When It Comes to the First Amendment, Should We Take All the Allies We Can Get?

-first published in Substack blog “The “Last Editor” on April 15, 2026

I like to think of myself as a defender of the First Amendment—both in thought and in deed. I recall first learning about it in elementary school and thinking that, of course we should all have the right to say what we want to say without the government interfering. In journalism school, I learned the specifics of how the First Amendment protects our right to print and broadcast, as well as the collection of court cases over the years that has defined and generally strengthened its protections. Later, as a working journalist, I found myself needing to assert those rights when dealing with public officials and others who would limit what I could put on the air. Finally, as a board member and later chairman of the Radio Television Digital News Association, I had direct responsibility to lead the organization’s championing of the First Amendment at the highest level, including writing and speaking to members of Congress, the White House and the Supreme Court. Through all of that time, I considered it part of my job and responsibility to educate people about the First Amendment, all for the good of the country.

There’s no doubt we’ve found ourselves in a time now when the First Amendment is in jeopardy more than ever before.

Anti-journalism feelings often target the First Amendment, mistakenly calling it a tool used for bias, rather than the opposite function it actually performs. And those false charges against it resonate with some in the public. A 2019 survey found 78 percent of Americans don’t understand what the First Amendment protects. More concerning, 57 percent think the government should be able to take action against journalists for the content they produce and 36 percent think the government should be able to police the content of the media. We can thank the Trump administrations for perhaps turning some of those anti-journalism thoughts around, as a survey by the Freedom Forum last year found half of respondents see Donald Trump as a threat to freedom of the press and all the other First Amendment rights except freedom of religion, while just a third saw him as a protector of those freedoms. We’ve ended up with what is clearly a partisan divide on press freedoms. Last fall, following the Charlie Kirk killing and the subsequent suspension of Jimmy Kimmel by ABC for making some pretty mild remarks about partisanship after the murder, Republican senator Cynthia Lummis of Wyoming said, “Under normal times, in normal circumstances, I tend to think the First Amendment should always be sort of the ultimate right…I don’t feel that way anymore.” That’s scary.

In a time when we see our First Amendment rights being questioned by the general public and those in power, we should welcome any allies to our cause we can get, right?

Enter the First Amendment auditors. If you’re unfamiliar with that term, this is a group of people—sometimes calling themselves journalists—who purposefully take photos and record video in public places where the law gives them the right to do so. (you can see one of the most popular auditors on YouTube going by the handle Amagansett Press). The movement started out as a somewhat legitimate way to challenge government officials—typically local ones—on their knowledge of what the law requires in terms of access and government openness and compliance. These auditors would typically go into a government office with the cameras rolling, seeing if anyone they encountered knew the law and would allow them to continue.

Of course, the nature of social media monetizing being what it is, this activity has morphed into something that generates a lot more views and a lot more dollars. The typical auditor videos I see now no longer challenge government officials on what they know, but uses regular citizens as their targets. An auditor will set up outside a bank, doctor’s office or pot shop and get pictures and videos of people going in and out—including their faces and licenses plates. All of this is done from a public sidewalk, meaning the auditors are within their rights to capture any images they want as there is no legal expectation of privacy in a public place. But the auditors are hoping the passersby they are recording don’t know that and will start a confrontation. Those confrontations tend to start verbally “I haven’t given you permission to take my picture!” to which the auditor tells the person that, thanks to the First Amendment, no permission is needed for taking pictures in a public place. Most targets don’t believe this is true—including, shockingly, some lawyers—and the argument escalates. In the instances most likely to create a big payday for the auditor, physical violence then ensues. The target will take a swing at the auditor, knock the camera from his hands, or generally assault the person taking the video. That then leads to the police being called. Once they arrive, the target usually finds out the auditors do in fact have the right to film without people’s permission, but that what the target did is assault and that means a trip to jail. In the most lucrative situations, the cops don’t know the law either and challenge the auditor for his ID or start to question him, leading to their own embarrassment when a police supervisor gets involved and sets the officers straight.

Like many other videos online, there’s a car crash quality to these auditor videos—particularly the ones that get violent—that makes it hard to look away. I have to admit I watch them when they pop up on my feed, not so much to see a target get pepper sprayed by an auditor after an assault, but more to see the look on the targets’ faces when the cops tell them what the auditors were doing was legal. To me, that’s the value of what these auditors do.

But is it educating the public?

When it comes to the targets—particularly the ones who get arrested—I doubt they learn much from the experience. They’re so mad at being put on camera and then proven wrong, they most likely write it all off as dumb cops who don’t know the law. But for everyone else who sees these posts on social media, I think it might actually do some educating. The popularity of these videos and their repetitive nature means those watching them who know nothing about First Amendment rights in general probably at least understand its protections extend to taking pictures and video in public.

Do I love the tactics of these auditors? No.

They often include odd behavior when getting their footage, like covering their face with a mask or refusing to talk when the targets ask the inevitable questions of “Who are you?” and “What is this for?” The auditors often call themselves “journalists” or “citizen journalists” but cannot answer when asked what the topic of the story is on which they are working. They come armed with pepper spray and other defensive weapons, hoping to get to use them. And they will slap or punch those who hit them first, often injuring elderly people. These actions keep me at arm’s length from the auditors. While I do enjoy seeing a particularly smug person being told he definitely can be recorded in public, I get no pleasure seeing a bloodied senior citizen laid out on the ground.

Ideally, we can seperate ourselves from the auditors and do some peaceful educating of our own when we’re out photographing and recording in public. We often hear someone asking what the video is for—and we should tell them. If passersby ask not to be on camera, we should oblige (unless they are the target of our story), all while explaining why we have the right to record even though we are choosing not to do it. We could also give the public some friendly constitutional law lessons if we use some of our social media posts recorded while out on the scene to explain the law and why it’s legal for us to take video of you or your business from a public sidewalk or why we don’t need to get permission from people we’re recording in a public place. Rather than wielding pepper spray, let’s just pepper in some First Amendment lessons with the social media content we’re already producing. We’ll be helping ourselves by getting the public to understand why we do what we do. Let’s not rely on people chasing questionable social media likes to do that for us.